“No discrimination” means exactly that

By Jim, on June 29th, 2010

The Supreme Court handed down a number of decisions in the last few days, prior to taking a summer break. The decision that seemingly everybody is talking about has to do with guns: the Court said that states and local governments can’t impose tighter restrictions than those imposed by the federal government. In particular, city ordinances that ban handguns outright were found to be unconstitutional. I have to admit to being a bit surprised that this was a 5-4 decision.

Another 5-4 decision, and one that I think should have been a 9-0 decision involved the University of California’s Hastings College of Law–a public institution–and a student group called the Christian Legal Society (CLS). The first part of the Court’s decision explains the issue quite well:

Hastings College of the Law (Hastings), a school within the University of California public-school system, extends official recognition to student groups through its “Registered Student Organization” (RSO) program. Several benefits attend this school-approved status, including the use of school funds, facilities, and channels of communication, as well as Hastings’ name and logo. In exchange for recognition, RSOs must abide by certain conditions. Critical here, all RSOs must comply with the school’s Nondiscrimination Policy, which tracks state law barring discrimination on a number of bases, including religion and sexual orientation. Hastings interprets this policy, as it relates to the RSO program, to mandate acceptance of all comers: RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of her status or beliefs.

CLS requires that all members and employees, as a condition of their employment or membership, acknowledge in writing a Statement of Faith that, in part, forbids “participation in or acceptance of a sexually immoral lifestyle,” which is defined as sex outside of a heterosexual marriage. Such a condition is obviously at odds with the non discrimination policy of Hastings College.

CLS tries to argue that Hastings’ restrictions on RSOs violate the CLS members’ rights under the first and fourteenth amendments to the Constitution. That’s silly. Hastings has not attempted to change the CLS policies. It has simply withheld recognition of a group that does not abide by the school’s nondiscrimination policy.

I’m flabbergasted that four Supreme Court justices came down on the other side of this issue. I haven’t yet read their dissenting opinions–something I really have to do. This decision seems so obvious that I can’t imagine what rational reason a judge could have for ruling that Hastings should recognize the group. But we’ll see.

The argument for the other side is that if you forbid a Christian organization from requiring Christian standards of behavior, you force it into hypocrisy. It would be like requiring the Democratic Party to admit people who campaign for Republicans.
But I think the root of the problem is that the whole notion of “officially recognized student organization” is flawed. When you start giving university facilities to a student group, you suddenly impose lots of new constraints that the group might be better off without. So we can flip this around and say: Why would a Christian student organization *want* to be “officially” part of a state university? Normally they do not — they are proudly independent — and this is a settled practice going back decades.
Or they could have chosen to remain within the “official” realm and open up membership to people who are interested in Christianity, not just people who accept its tenets. That might lead to an odd kind of organization, but also a useful one.

Please note the following argument, which apparently impressed 4/9 of the Court: The CLS is not discriminating against people on the basis of sexual orientation! It is merely requiring everyone, regardless of sexual orientation, to abide by Christian standards of behavior, i.e., chastity or male-and-female marriage. This “discriminates” against promiscuous heterosexuals (who are extremely numerous) as well as gays. It is a behavioral criterion, akin to a vegetarian society asking members to pledge not to eat meat.
Now if the university’s policy really is that “RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of…beliefs” then that is a bizarre requirement. Every organization must allow people totally opposed to its goals to join and seek leadership? Can any organization, other than perhaps puppets of the administration, actually run that way?
What it amounts to is, “Student organizations are not allowed to have opinions that differ in any way from our present official policies.”

Michael: I read the dissenting opinion and at least now understand their point of view. I can’t say that I agree with it, though. I liked your earlier point: that the whole notion of an officially recognized student organization is flawed. Although you can apply the same logic to publicly funded education in general. I don’t know what it’s like in Georgia, but the education system here in Texas is a huge political football.